Referring to the Supreme Court of the United States, Justice Jackson had famously remarked “We are not final because we are infallible, but we are infallible only because we are final”. This statement holds relevance to the Supreme Court of India, of whom it has been observed that had there been another court above it, half its decisions would be overturned. Nevertheless, whether the ultimate decision is right or wrong, the buck stops with the Supreme Court, and so it must. Certainty and finality are important facets of our constitutional framework and are highlighted in Article 141 of the Constitution.
It is in this context that we should welcome the Supreme Court’s decision rejecting the C.B.I.’s curative petition in the Bhopal tragedy matter. The C.B.I. sought to reopen the Court’s 1996 judgment after more than fourteen years so that the charges against the accused could be increased from that of “criminal negligence” to “culpable homicide not amounting to murder”. The punishment for the former is imprisonment up to two years, and that for the latter is imprisonment up to ten years.
Consequent to the 1996 judgment, a Bhopal court in June 2010 sentenced seven former Union Carbide executives to two years in jail. They were granted bail immediately. These events culminated in a massive public backlash. Consequently, the C.B.I. and the Madhya Pradesh Government decided to file curative petitions seeking a review of the 1996 judgment. The objective was to remedy what was considered very light punishment to the perpetuators of one of the worst industrial disasters ever.
The Supreme Court was faced with a choice: to entertain the petition after fourteen long years and review the 1996 judgment or to dismiss the petition and affirm the importance of bringing peace and finality to litigation. This is not an easy choice. The dilemma is compounded by the fact that finality of litigation is an inseparable feature of the rule of law.
For the law to govern, rights and duties must be certain, and that can only be so if they are properly enforced. For the proper enforcement of these rights and duties, it is essential that laws are precisely defined, constant, stable, and predictable. In the absence of such features, the law becomes fluid and uncertain and consequently, the rule of law can only be an illusory goal. Further, no person should be made to face the same kind of litigation twice over. This is an abuse of the process of the court and must be rejected. It is therefore an important consideration of public policy that – right or wrong – a decision pronounced by the Supreme Court should not be constantly tampered with. If not, Lord Shaw’s observation in Hoystead and Others v. Commissioner of Taxation (1962), that “…litigation would have no end, except when legal ingenuity is exhausted” would certainly prove correct.
There are of course exceptions to the above rule of finality of Supreme Court judgments. These include situations where the legislature passes a new law to nullify a Supreme Court judgment by which the very premise of the judgment is uprooted, thereby, resulting in a fundamental change of the circumstances upon which the earlier judgment was founded (See, Bakhtawar Trust v. M.D. Narayan, (2003) 5 SCC 298, at para 5). Further, the Supreme Court itself may constitute a larger bench to revisit a proposition of law (for instance, the chain of cases from Sankari Prasad v. Union of India, AIR 1951 SC 458 to Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461, which resulted in the formulation of the “basic structure” doctrine). These larger benches, however, revisit propositions of law as opposed to factual circumstances that have already concluded and attained finality. This is so because the approach taken by Indian courts is that the law cannot be static and must evolve with time. In doing so however, the Supreme Court has been cautious not to upset rights that have already crystallised. For instance, in I.R. Coelho v. State of Tamil Nadu, 2007 (2) SCC 1, the Court famously held that a law that violates the basic structure doctrine, even if included in Schedule Nine of the Constitution, would be declared invalid in exercise of its power of judicial review. However, the Supreme Court clarified that if it has upheld the validity of any law in the Ninth Schedule, such law would not be open to challenge again on the principles declared by the I.R. Coelho judgment. The Supreme Court has passed such a direction to uphold the finality of its judgments. Even in light of subsequent developments in the law, the Supreme Court rightly concluded that it would not be proper to constantly reopen judgments, as it is important to give quietus and peace to litigation.
In addition to the above circumstances, the Supreme Court may also take another look at a case (including its factual circumstances) in which judgment has already been pronounced by way of a curative petition. In Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 338, it was held that a curative petition may be allowed in cases when (a) the party to the case has not been heard; or (b) where a judge deciding the case failed to disclose their interest in the case, thereby raising an apprehension of bias. Neither of these factors were satisfied in this case. The fact that the curative petition was preferred after so many years only justifies the decision to dismiss the petition. Perhaps a valid case of “patent injustice” (See, A.R. Antulay v. R.S. Nayak, 1988 2 SCC 602, discussing the principle that no man should suffer because of a mistake of the courts and that the court should not feel shackled to rectify an injustice) can be made out in the present circumstances. However, if the injustice was so patent, what prevented the C.B.I. and the state government from stepping forward earlier? The Supreme Court cannot overlook such lapses and disturb rights and duties that have already crystallised.
At first glance, it may appear that injustice has been done and those responsible for the death of thousands of innocent citizens would be allowed to get away with lenient punishment. However, the Supreme Court has thrown a lifeline to the C.B.I. and the state government. It has categorically held in its order that its 1996 decision was based on the evidence presented to it at that time. If the C.B.I. and the state government were able to bring forward additional evidence to show that the charges framed should have been of a more severe nature, the appellate courts could consider framing higher charges.
Thus, the Court held that the 1996 judgment would not operate as a bar to pressing higher charges if the evidence presented justified the pressing of such charges. In adopting this approach, the Supreme Court has balanced the issue delicately. It resisted the temptation of re-examining the 1996 judgment and yet gave the C.B.I. and the state government a glimmer of hope. If judgments of courts, particularly those of the Apex Court, are constantly reopened and there is no finality, the entire system of the rule of law will crumble. The common man would be confused and the litigant would remain in a cloud of uncertainty about whether or not their case has attained finality.
Rather than questioning the possible injustice that arises out of the Supreme Court’s judgment, the question that needs to be asked is what the C.B.I. and the state government were doing all these years. Perhaps this belated curative petition was motivated more by public perception and the need to show the citizen that something was being done. However, the courts in this country are not motivated by such factors, and under our constitutional scheme, are to give decisions solely on the basis of the law.
n these modern times, investigators and public prosecutors cannot be lax. Evidence must be carefully gathered and legal remedies must be conscientiously pursued. If the Supreme Court were to constantly reopen matters on one ground or the other, it would amount to condoning inefficient actions on part of public officials. Today, the Supreme Court is being forced to micromanage every aspect of an investigation or a controversy. It has been forced to do so owing to the lethargic, ineffective, and at times motivated actions of public officials. The judgment dismissing the curative petition clearly sends the message to these public officials that the rule of law would tilt towards finality rather than accuracy.
A second curative petition has also been filed to enhance the compensation already awarded to the victims of the Bhopal tragedy. In light of the Supreme Court’s decision, it appears that this curative petition will also meet the same fate. Undoubtedly, the compensation awarded was unjust, but the government had accepted the amount under a settlement and the judgment had attained finality. Unlike the present order, in which the Supreme Court threw a lifeline to the government, one has to wonder what possible lifeline the Supreme Court could give in the second curative petition. The government may have made wrong decisions at the time, but it is not the Supreme Court’s job to correct such decisions after such a long period has elapsed. It is high time that public officials efficiently did their job rather than hope for the Apex Court to do their job for them.
[First published in http://www.mylaw.net on May 23, 2011]